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Mark Harper’s resignation: has he broken the law?


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Immigration Minister Mark Harper has resigned from the Government because in 2007 he employed a cleaner who did not have permission to work. Harper claims that he has not broken the law but is resigning because “I should hold myself to a higher standard than expected of others”. The first part is arguably untrue: he may well in fact have broken the law. There are two separate laws for us to look at.

The first is the Asylum and Immigration Act 1996. This was the law in force at the time that Harper employed his cleaner, in 2007. The new law only came into force in 2008. Section 8 of the 1996 Act created a criminal offence of employing a person who did not possess permission to work. Subsection 2 created a statutory defence, though, if it could be proved:

(a) before the employment began, there was produced to the employer a document which appeared to him to relate to the employee and to be of a description specified in an order made by the Secretary of State; and

(b) either the document was retained by the employer, or a copy or other record of it was made by the employer in a manner specified in the order in relation to documents of that description.

Harper says in his resignation letter correspondence with David Cameron that he cannot now produce the documents of which he allegedly took copies back in 2007:

I undertook an extensive search to locate the copies of documents I had taken but unfortunately I was unable to locate them.

Without being able to produce actual copies of the documents he claims to have copied and retained in 2007, he is in some difficulty proving that he did indeed retain take and retain copies as he claims. The applicable Home Office guidance at the time warned employers (see page 5)

You should then keep a record of every document you have copied. By doing this the Immigration Service will be able to examine your right to the defence if they detect anyone working illegally for you.

Your word in court is evidence, though, and if a magistrate accepted Harper’s word for it then the defence would be established and he would be in the clear. If not, the Home Office website warns such employers as follows:

If you employed an illegal migrant worker from 1 May 2004 to 28 February 2008 and did not establish a statutory defence, you could still be prosecuted and fined up to £5,000 per illegal worker in a Magistrates’ Court.

Harper suggests in his resignation letter that his cleaner was self employed. This does not automatically get him off the hook, though. Section 8(8) of the 1996 included some definitions:

“contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether it is oral or in writing;

“employ” means employ under a contract of employment and “employment” shall be construed accordingly.

Employing a cleaner might well be under a ‘contract of service’. The full employer guidance addressed this issue at p34 with a series of questions for employers to ask themselves about the nature of their relationship with the worker in question, stating

whether a person is truly your employee or self-employed will depend on all the facts and circumstances of the case.

There were very few prosecutions under section 8 of the 1996 Act, perhaps because it was considered absurd overkill to criminalise those who, like Mark Harper, did not take and retain copies of certain documents when they took on a new employee. The new regime created by the Immigration, Asylum and Nationality Act 2006, in force from 2008, retains at section 21 a criminal offence for knowingly employing a person without permission to work but sets up a civil penalty regime for those who did so accidentally.

The civil penalty regime starts at section 15 of the 2006 Act. Section 15(7)(c) requires an employer

to take specified steps to verify, retain, copy or record the content of a document produced to him in accordance with the order

The full guidance to employers on the 2006 Act regime is very clear (page 11):

You must take and retain a copy of the document, in a format which cannot later be altered

The 2006 Act includes at section 25 a similar interpretation provision to the 1996 Act regarding employment:

a reference to employment is to employment under a contract of service or apprenticeship, whether express or implied and whether oral or written

Chatham House - The Rt Hon Baroness Scotland QC
Chatham House – Baroness Scotland

Under the current civil penalty regime, Harper would surely be liable. He has not retained the documents as required. The penalty would normally be £5,000, the same as imposed on Baroness Scotland when she was a minister. Indeed, the story then was that she had carried out the checks but had not retained copies of the documents, just the same as Harper today. Chris Grayling, now Lord Chancellor but then Shadow Home Secretary, had some pretty strong words for her, stating that employers could not be inadvertently innocent and pointing out that she was the person who stood up and argued these laws were necessary.

As Mr Harper will be very well aware, the Immigration Bill he just steered through the House of Commons lifts the maximum penalty to £20,000. Mr Harper has timed his revelation rather well from a financial perspective.

Harper’s Bill will also expose private landlords to the same sort of regime of which he may himself have fallen foul. Opponents of the Bill are concerned that even the risk of such a penalty will deter landlords from renting to those that might not have permission to reside in the UK, causing difficulties and discrimination for lawfully resident and even British ethnic minorities. With 25% of Conservative MPs apparently being private landlords, how many more ministerial resignations will we see in future because of such easy to make slip ups?

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


18 Responses

  1. Talk about living by the sword and perishing by the sword, though maybe he was tired of being the Immigration Minister anyway….. Thank you for that useful elucidation.

  2. Far from committing a crime, I don’t see how he has done anything wrong. He saw a Home Office letter stating the cleaner had indefinite leave to remain. There is no suggestion in his resignation letter that that Home Office letter was anything other than genuine. So why hasn’t his cleaner got indefinite leave to remain? The letter itself might not be proof of the grant- there should have been a stamp in her passport (although he says he checked this too). But the letter shouldn’t have been issued unless the grant was made…something went wrong somewhere, whether in 2006 when the letter was issued or in 2014 when the Home Office officials checked their database to see if the cleaner had ILR. Given the state of the Home Office database…

    Meanwhile, the poor cleaner faces enforcement action when (assuming I am correct in my reading that it was genuine) s/he had a letter she thought she could rely on. I wonder who will be acting for him/her?

    1. He SAYS he saw a Home Office letter. He cannot now find that letter. And so we are supposed to believe everything Tory ministers say now? If he was not a Tory minister he would be being prosecuted now. End of story.

  3. Harper HAS done something wrong. An employer is in breach of the law (ie the civil offence) simply by employing someone without permission to work in Britain. There is a defence (or rather, the offender will be excused from paying the fine) only if the employer has seen, copied and kept documentation suggesting the employee was a legal worker AND made “reasonable” checks about authenticity. If he hasn’t got that material, how can he prove he ever had it? If he hasn’t kept it “securely”, (and if he can’t find it, by definition he can’t have kept it securely) he is in breach ie he doesn’t get the relief from the fine.

    One has to worry, too, about millions of copies of proof of right to work in Britain sitting in employers’ files and soon landlords’ top drawers. These items of proof include photocopies of pages (and the cover) of passports – of ALL employees/tenants, not just those who might look like the sort who might not have a right to work (ie those you think might be “subject to immigration control” – foreign-looking people presumably…). The law requires them to be kept “securely” – but even banks can’t seem to hang onto the passport details of their customers (required under money laundering law) http://www.bbc.co.uk/news/uk-26106138. Britain will soon have more and more sources of insecure passport info scattered about the country and available for fraudulent purposes.

  4. Well, quite apart from the possibility his cleaner DOES have permission to work (see my remarks about the possibility of a screw up in 2014 rather than 2006, also s/he would have permission to work, if for example, s/he has rights under European law, including Zambrano, for which no documents are actually required), I’m not sure the 2008 law applies when the original hiring was in 2007 and he complied with the law in 2007. There was no “document produced to him in accordance with the order” under the 2008 law (it was produced to him under a different regime). Ergo, he had no duty to retain said non-existent document.

    However, it seems my theory the letter was genuine may have been over-optimistic…

    1. The law applies to employment NOW. It is irrelevant when she was first employed. If you are currently employing someone, knowingly or unknowingly, who does not have permission to work, you are in breach of the civil law (Section 8) and subject to fine. Only if you can show you had procedures in place to check your employees’ status, you did check it AND you securely retained copies of the relevant material can you avoid the fine. If Harper cannot show the authorities those copies then the fine under Section 8 is due. Employers should not check “when they are suspicious” (see suelukes below); they should already have checked ALL their employees, however British or foreign they seem, however innocent or suspicious looking. And they should keep the copies of documents of ALL employees (for two years after they leave, in fact). It’s a barmy law which is why it trips up members of government.

    2. Clarification to my previous: there is a cut-off date but it is January 1997 ie when the original Act came into force, not 2008. But the point is that it applies to current employees. It doesn’t arise simply at the point when new employees are taken on, so current employees should be checked if taken on after 1997.

  5. He has been blown into the air by a loud discharge of intestinal gas (or hoist with his own petard as some may say)!

  6. I wonder whether he has broken the law in other respects though. Someone here suggests Race Relations Act in rleation to unwarranted employer checks http://thoughcowardsflinch.com/2014/02/09/on-mark-harpers-breach-of-the-race-relations-act-1976/ (I am sure that should be the Equality Act now, and maybe an employment discrimination expert could comment). But I wonder aboiut abuse of authority. He says he got his officials to check the cleaner’s status when he became suspicious. How? Most employers have to rely on the written guidance provided by the Home Office and they can then only use the employer checking service in certain situations (and this does not appear to be one of them)

    “The employer checking service is a developing service that offers employers the opportunity to check the status of individuals to work in the UK in the following specific circumstances:

    where the individual has an outstanding application or appeal with the UK Border Agency;
    where the individual has presented an application registration card (ARC) which requires validation; or
    where the individual has presented a certificate of application which requires validation.
    If the individual does not meet these criteria, the employer checking service cannot currently confirm their right to work in the UK, regardless of their legal entitlement to work”.

    So how did he find out about his/her status? shop him/her and request an immediate raid? demand that his officials provide him, as an employer, with a service no other employer has? Again, not my field, so just asking?

  7. I don’t think asking for documents constitutes harassment if it only happened on 2 occasions (2007+2014), even if the second check was unnecessary. And, unless Mark Harper has another (personal) employee of a different nationality whose documents he isn’t checking, I don’t see any direct or indirect discrimination.

    However, getting the UKBA to investigate your employee’s immigration status is harassment, especially without any just cause. The abuse of power is a fair point too.

    So, I was wrong when I said he hadn’t done anything wrong…

    1. Phil/Sue

      You may be right that Harper’s actions might not be construed as harassment – that would be for the interpretation – but there is one section of the RRA directly above the one I quoted (for brevity) in my post which might also apply:

      “It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee—

      (c)by dismissing him, or subjecting him to any other detriment.”

      This suggests that, even in the absence of overt harassment, Harper might be in breach simply because he has fairly clearly caused detriment.

      I acknowledge your point about the difficulty of proving discrimination without another employee to compare against directly, but I would contend that such a direct comparison would not be needed, since it is reasonable to assume that he would not have taken the same action with a putative employee of different nationality.

      Sue – the RRA is not superseded by the EA 2010. it remains extant law, though it has been amended a lot to reflect later Acts (implemention through revision to earlier Acts is the most common legistlative process in English statute).

      I have at least tiny hope that the cleaner may, at any hearing to come, may be able to call on the fact that because an unlawful act has brought her/him to this point, it is therefore in itself an illegitimate process in law (cf case law in which an arrest is not vaild if undertake while/because a police officer was engaged in an illegal act).

  8. I agree with Brandon Bell as I don’t like just accepting the stories we are told. This could easily have been meant as a dire warning to anyone having dealings with people who could possibly have no basis to be in the country. Even if the Immigration Bill is modified I would think that this very public event could well have been designed to add to an atmosphere of suspicion – and that as I suggested at the beginning, Mark Harper may have been ready to change posts. Either that or his removal is serving a pre arranged agenda.

  9. I think it just fair that he pays the fine, because he has pleaded guilty. I do not know why the PM is instead saying that he wants him back to the front desk without any further delay! We need to see that while the cleaner faces enforcement, the Minister pays the fine, that is what they call living by example!! But these Cons???

  10. If there is a choice between cock up and conspiracy, I’d almost always say it is a case of a cock up. The only thing suspicious about the resignation, I think, is the timing – it seems like he’d known about it for some time but chose to announce on a Saturday afternoon after the Immigration Bill had passed the Commons.

  11. paulinlancs: “to discriminate against an employee”…”by dismissing him, or subjecting him to any other detriment” cannot mean that whenever an employer dismisses an employee, or subjects him to any other detriment, he is discriminating against that employee.

    What it means is, dismissing an employee or subjecting him to any other detriment is capable of being discrimination providing it passes the normal test for discrimination. Which involves having another person whom you are treating more favourably and the reason for that more favourable treatment being the relevant characteristic (here, nationality).

    I don’t think it is entirely obvious that a hypothetical second employee of Mark Harper would not have faced the same treatment, even if they were (ostensibly) a British national. Mark Harper would surely have acted in the same way in 2007- he would have taken a copy of the British national’s passport (as he would have indeed been obliged to do). Can we be sure he would not have, on finding he had not retained said copy in 2014, have asked for another copy? Although perhaps it stretches the point to imagine him asking his officials to verify the passport…